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TMI Blog2007 (7) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... /2005) Star India Pvt. Ltd. has prayed for a certiorari quashing the proviso to Section 2(1)(k) of the TRAI Act; a certiorari for quashing Tariff Orders dated 15.1.2004, 1.10.2004, 1.12.2004 and 29.11.2005 and the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 It has further been prayed that the Court should declare that TRAI is not competent to regulate broadcasting services as also another declaration to the effect that these impugned Orders and impugned Interconnect Regulations are vocative of Articles 14 and 19(1)(a) and (g) as also Articles 301 to 307 of the Constitution. In Petition No. II (CW 5332/2006) Star India Private Limited has prayed for the setting aside an order of the Telecom Disputes Settlement and Appellate Tribunal in Appeal No. 12(C) of 2005 titled Grahak Hitvardhani Sarvajanik Sanstha v. TRAI and (b) issuance of a writ of certiorari quashing the Telecommunication (Broadcasting and Cable) Services (Second) Tariff (Fourth Amendment) Order 2006 notified on 7.3.2006. In Petition No. III (CW 14877-78/2006) Star India Private Limited has prayed that the Telecommunication (Broadcasting and Cable) Services (Third) (CAS Area) Tarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been provided to us by the Respondents in terms of the affidavits dated 21.2.2007 filed on behalf of TRAI. So far as Star India Private Limited is concerned it appears that it is completely (98.85899 per cent) held by a foreign company named Buzzer Investments Ltd. registered in Mauritius, which in turn is owned by The News Corporation Ltd. which is registered in Australia. Star India Private Limited is the sole petitioner in WP(C) Nos. 24105/2005 and 5332/2006. Learned ASG has also emphasized the fact that these petitions have been signed and verified by Mr. Himavat Chaudhuri, in the capacity of its Associate General Counsel and Vice-President(Legal). The status in the context of Article 19 has not been elucidated upon in the Petitions. WP(C) No. 14877-78/2005 has also been filed by Star India Private Limited through its General Counsel Head of Legal Affairs who has verified the Petition and is also Petitioner No. 2. Remarkably, the Petition has not been signed by him. In the Petition it has been vaguely averred that Star India Private Limited is a company incorporated under the Companies Act, 1956, engaged in the business of distributing television channels and that Mr. Ajay K. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ens. In this connection, it is emphasized that the Doordarshan is also using Worldtel, a foreign agency. Most of the newspapers in India are printed on machines imported from abroad. A newspaper may also have a foreigner as its manager. However, that does not take away the right of the newspaper under Article 19(1)(a). They are only instances of technical collaboration. Apart from it, every citizen has a right to information as the same cannot be taken away on grounds urged by the MIB. 6. On the other hand, the learned Counsel for the Respondents have taken us through a catena of cases containing reflections on the legal position of whether a company can file a petition seeking enforcement of Fundamental Rights. In The State Trading Corporation of India v. The Commercial Tax Officer, Visakhapatnam [1964]4SCR99 (STC case in short), the nine- Judges Bench of the Supreme Court clarified that the Constitution deliberately and advisedly makes a clear distinction between Fundamental Rights available to 'any person' and those guaranteed to 'all citizens'. Article 19 inter alias guarantees citizens of India (a) the freedom of speech and expression and (g) the right to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The facts were that a vessel had contravened the provisions of Section 52-A of the Sea Customs Act when it entered the Calcutta Port. Learned Counsel for the Petitioner had sought to argue that if means read was not an essential element of Section 52-A that provision would be ultra virus Articles 14, 19 and 31(1) and as such unconstitutional and invalid. The Constitution Bench observed that the Appellant was not only a company, but also a foreign company, and as such is not entitled to claim the benefits of Article 19. It is only citizens of India who have been guaranteed right to freedom enshrined in the said Article.... The plain truth is that certain rights guaranteed to citizens of India under Article 19 are not available to foreigners and pleas which may successfully be raised by the citizens on the strength of the said rights guaranteed under Article 19 would, Therefore, not be available to foreigners . This very question thereafter arose before another Constitution Bench in Tata Engineering and Locomotive Co. Ltd. (Telco) v. State of Bihar [1964]6SCR885 and yet again was rejected. Following the STC case the Constitution Bench opined that the Petitioners cannot be hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eems to us to trivialize the function of the press and Therefore to be logically and legally incongruent. After discussing the cases already mentioned by us above, their Lordships spoke as follows: 22. In the Bank Nationalization case (supra) this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalization case (supra) the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalization case (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalization case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as explained in Benett Coleman, does not consider it essential that a 'class action' should be initiated in order to successfully withstand an assault on the Fundamental Right of a citizen; nay, even a single citizen has the inviolable right to enforce compliance and respect to his Fundamental Rights. In our opinion whilst there is no scope for applying a quantitative test a qualitative test is essential in such matters. As has specifically been observed in Benett Coleman the rights of a writer or Editor of freedom of speech and expression must be protected. But these rights cannot be confusedly and incorrectly enforced in favor of persons not falling in this category. A single shareholder may have sufficient locus standi to fight the cause of a company whose commercial interests are common to his, as had happened in the Bank Nationalization cases. The employment of the word `citizen' should not be washed away or watered down. Bennet Coleman was not a foreign company. The right of speech and expression, being zenithal in nature, is a freedom incomparable to any other Fundamental Right. Whilst its amplitude ought not to be circumscribed, curtailed or restricted its i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tricted to or predicated upon Article 19(1)(a) but primarily seeks to challenge the amendment made to Section 2(1)(k) of the TRAI Act which gives untrammeled powers to the Central Government being totally contrary to the intention of the framework of the TRAI Act. As explained above the TRAI Act is not designed to regulate or deal with broadcasting services as broadcasting industry is significantly different from the telecom industry. The amendment is also challenged on the ground that the proviso is ultra virus the TRAI Act and amounts to excessive delegation. Such a challenge is capable of being maintained on its own by a Company without any shareholder/s being arrayed as Petitioner(s). It is submitted that remedy available under Article 226 of the Constitution are wide and not restricted to violations of fundamental rights . This is obviously an argument in desperation because the bulwark and fulcrum of the Petitioners' case is what they receive as a flouting of the freedoms of speech and expression guaranteed in Article 19 of the Constitution. In fact, the gravamen of the argument on behalf of the Petitioners relates to 19(1)(a) and not merely 19(1)(g) of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opagated in space without artificial guide The contention on behalf of the Respondents is that even a cursory reading of these definitions will reveal that 'telegraph' and 'telecommunication services' have similar definitions and thus fall within the sweep of the Telegraph Act as well as the TRAI Act. They further contend that `broadcasting' also falls within the same definition. Mr. Shenoy, however, seeks to clarify that the definition in the Telegraph Act refers to machinery whereas Broadcasting concerns the content carried on these machines. Without going into minute detail, it seems to us that Broadcasting is covered under both the statutory definitions. This is of importance for the simple reason that, but for the exclusionary words underlined by us, broadcasting activities would automatically be regulated and governed by the TRAI Act also. In the analysis made hereinafter, this could not have been the intention of Parliament. 15. We need to briefly traverse through the annals of this legislation along with some others covering concerns cognate to it. It has now come to be accepted that this exercise is permissible, nay recommended, wherever and whene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argement of the functions of TRAI to include terms of interconnectivity between service providers, laying down of standards of service, making recommendations of efficient management of available spectrum. Of special significance to the problem that has been presented before us is that the SOR specifically states that the tariff setting function of the Authority has been brought under the purview of Sub-section (3) of Section 11. However, it is indeed noteworthy that the SOR fails to make any mention of the circumstances necessitating the introduction of the Proviso to Section 2(1)(k), which facet of the amendment is at the fulcrum of the dispute before us. For that matter, even the Telecom Regulatory Authority of India (Amendment) Ordinance, 2000, promulgated by the President on January 24, 2000 is also remarkably reticent on this point. 18. Section 3(1AA) of the Telegraph Act being the definition of `telegraph' had already been introduced into that statute with effect from 2.5.1961. It is in this context that it has been emphasized that the definitions in the TRAI Act has palpably been substantially lifted from the Telegraph Act. Therefore, even if the TRAI Act is ignored, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view the fact that integration of the two sectors was taking place very rapidly in the wake of technological convergence, the Subgroup felt that there was a need to have an enabling provision in the TRAI Act by amending the definition of Telecommunication Service under Section 2(1)(k) so as to include broadcasting services. 20. In December, 2003 a Division Bench of this Court in CWP 8993-4/2003 titled Consumer Coordination Council v. Union of India, permitted the Conditional Access System (commonly called CAS) to be introduced in Delhi. Poignantly for the present purposes, the Government was directed to look into the question of framing a policy with regard to those channels which generate a lot of money by advertisements, as to why those channels where money is received by advertisements, should not be notified as FTA channels. Respondents to also consider in regard to the time allotted in a slot of 30 minutes to advertise whether a limit needs to be put in respect of time for advertisements. These Orders are obviously the precursors of those passed by TRAI subsequently. Notification S.O. 39(E) dated 14.1.2003 made it obligatory for every Cable Operator in Chennai, Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Therefore on the principle of harmonious construction and to avoid a conflict between the two powers it must be held that Article 161 does not deal with the suspension of sentence during the time that Article 142 is in operation and the matter is sub judice in this Court.... Therefore, if there is any field where the two powers can be exercised simultaneously the principle of harmonious construction has to be resorted to in order that there may not be any conflict between them . 22. Of equal importance is the principle that requires that a later or subsequent provision, textually or chronologically, should prevail upon an earlier one. In The King v. Dominion Engineering Co. Ltd. AIR 1947 PC 94 it has been opined that where a section or enactment contains two provisos and the second proviso is repugnant to the first, the second proviso must prevail for it stands last in the enactment and speaks the last intention of the makers. In similar vein it has been observed in Govt. of T.N. v. Park View Enterprises (2001)1SCC742 that the later section will carry effectiveness in the event of a contra intention expressed in an earlier provision of the statute. This is really in consona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omething within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. 25. Learned Counsel for the Petitioners have laid great store on the following passages from J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers (1997)ILLJ722SC : 33. A proviso to a provision in a statute has several functions and while interpreting a provision of the statute, the court is required to carefully scrutinise and find out the real object of the proviso appended to that provision. It is not a proper rule of interpretation of a proviso that the enacting part or the main part of the section be construed first without reference to the proviso and if the same is found to be ambiguous only then recourse may be had to examine the proviso as has been canvassed before us. On the other hand an accepted rule of interpretation is that a section and the proviso thereto must be construed as a whole, each portion throwing light, if need be, on the rest. A proviso is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be a proviso in the accepted sense but may be a substantive provision itself. In UPSRTC v. Mohd. Ismail (1991)IILLJ332SC , their Lordships have similarly opined that sometimes the insertion of a proviso by the draftsman is not strictly adhered to its legitimate use and it may be in substance a substantive provision adding to and not merely excepting something out of or qualifying what goes before it. Thereafter, in Laxminarayan R Bhattad v. State of Maharashtra [2003]3SCR409 , their Lordships have reiterated, substantially on the lines of paragraph 43 of Pillai, the principles of statutory interpretation in this articulation:- 55. A proviso, as is well known, may serve different purposes: (i) qualifying or excepting certain provisions from the main enactment; (ii) it may entirely change the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (iii) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (iv) it may be used merely to act as an optional addendu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. 28. It is also a firmly entrenched principle of interpretation of statutes that the Court is obliged to correct obvious drafting errors and adopt the constructive role of 'finding the intention of Parliament... not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it' as enunciated in State of Bihar v. Bihar Distillery Ltd. AIR1997SC1511 . The Court should also endeavor to harmoniously construe a statute so that provisions which appear to be irreconcilable can be given effect to, rather than strike down one or the other. It must also not be forgotten that jural presumption is in favor of the constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n January 24, 2000 the Notification was promulgated a considerable time thereafter, as late as on 9-1-2004 So far as we are concerned, this indicates that the Government has acted in a responsible and thoughtful manner. It should not be overlooked that there is much to be said in favor of bringing about changes into a statute through the device of Notifications especially where advances in technology and science lead to rapid obsolescence and equally exponential inventions and innovations. In Laxmi Video Theaters v. State of Haryana (1993)IIILLJ42SC and State v. S.J. Choudhary their Lordships have recommended that statutes should be so construed by Courts as to ensure that changes in science and technology are given full effect. It seems to us that by the introduction of the Proviso implementation of this salutary principle has been ensured. On the strength of these judgments, however, had there been any repugnancy it would have been the Proviso which would have been given effect to by us. 31. Before proceeding to consider other arguments articulated by learned Senior counsel for the Petitioners we should mention the decision of the Division Bench of the High Court of Judicature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Sakal, (3) Benett Coleman, (4) Indian Express Newspapers (Bombay) Private Ltd. v. Union of India (5) and CAB wherein the following enunciation of the law is to be found: 71. Merely because an organisation may earn profit from an activity whose character is predominantly covered under Article 19(1)(a), it would not convert the activity into one involving Article 19(1)(g). The test of predominant character of the activity has to be applied. It has also to be ascertained as to who is the person who is utilizing the activity. If a businessman were to put in an advertisement for simplicities commercial activity, it may render the activity, the one covered by Article 19(1)(g). But even newspapers or a film telecast or sports event telecast will be protected by Article 19(1)(a) and will not become an activity under Article 19(1)(g) merely because it earns money from advertisements in the process. Similarly, if the cricket match is telecast and profit is earned by the licensing of telecasting right and receipts from advertisements, it will be an essential element for utilization and fulfillment of its object. The said object cannot be achieved without such revenue. ... 74. It wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cket matches organized by them, they are asserting the right to make business out of it. The sporting organizations such as BCCI/CAB which are interested in promoting the sport or sports are under an obligation to organize the sports events and can legitimately be accused of failing in their duty to do so. The promotion of sports also includes its popularization through all legitimate means. For this purpose, they are duty bound to select the best means and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the most efficacious methods, thanks to the technological development, the sports organizations like BCCI/CAB will be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularize the game. That while pursuing their objective of popularizing the sports by selecting the best available means of doing so, they incidentally earn some revenue, will not convert either them into commercial organizations or the right claimed by them to explore the said means, into a commercial right or interest. It must further be remembered that sporting organizations such as BCCI/CAB in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Supreme Court, the right to share in the frequency is not claimed without a license. Thirdly, the right to use a frequency for a limited duration is not claimed by a business organization to make profit, and lastly - and this is an important aspect of the present case, to which no reply has been given by the MIB - there is no claim to any frequency owned and controlled by the Government. What is claimed is permission to uplink the signal created by the organizer of the events to a foreign satellite. 78. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licenses to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact, and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, Therefore, needs regulation for balancing it and as well as to prevent monopoly of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of fairness has been evolved in the U.S. in the context of the private broadcasters licensed to share the limited frequencies with the central agency like the FCC to regulate the programming. But this phenomenon occurs even in the case of the print media of all the countries. Hence the body like the Press Council of India which is empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our country, freedom from pre-censorship unlike the electronic media. 33. Since so much emphasis has been laid on the CBA observations that are to be found in CBA decision how far we need to reflect upon the extent to which it can be applied to the facts of the present case. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were used. Most recently, in Zee Tele Films v. Union of India AIR 2006 SCW 2005, the Court has unequivocally declared that a decision is not an authority for the proposition which did not fall for its consideration. In A-One Granites v. State of U.P. and Ors. [2001]1SCR1085 it had been contended that the controversy was covered on all fours by a previous decision of the Court. The contention was rejected in these words- 11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. Following the said decision, this Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur AIR1989SC38 observed thus (at p. 43 of AIR): In Gerard v. Worth of Paris Ltd. (K) (1936) 2 All ER 905, the only point argued was on the question of priority of the claimant's debt, and on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lord Halsbury, namely, that every judgment must be read as applicable to the particular facts proved or assumed to be proved.... The other is that a case is only an authority for what is actually decides . These quotations have been reiterated in Goodyear India Ltd. v. State of Haryana [1991]188ITR402(SC) and State of Orissa v. Sudhansu Sekhar Misra (1970)ILLJ662SC . In the latter case, the Court explicitly opined that a decision on a question which has not been argued cannot be treated as a precedent . Their Lordships, in turn, referred back to the previous opinion in Rajput Ruda Meha v. State of Gujarat 1980 SC 1707 in which it had similarly been stated that where an issue has neither been raised nor argued any decision by the Court, even after 'pondering over the issue in depth', would not be a binding precedent. Similar observations have been made by the Constitution Bench in Padma Sundara Rao v. State of T.N. [2002]255ITR147(SC) , as is evident from the following extract: 9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is alway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer that their activities are seen as manifestations of the freedom of speech and expression rather than trade and commerce thereby minimizing State control or interference. 37. There is much substance in the Interim Report dated January 13, 2000 inasmuch as it advocates separate treatment of transport and content aspects of telecommunication . The segregation and differentiation between the carriage of information through a variety of technological drivers and the content of that information is indeed relevant and noteworthy. It appears to us, however that even in case of programmes which may indubitably encompass freedom of speech and expression and accordingly beregulatable only within the confines of Article 19(2), their carriage or transport through telecommunication may adorn the trappings of trade or business. In the latter case the activity would be subject to reasonable restrictions that are in the interests of the general public. We have queried learned Senior counsel for their opinion as to whether pure entertainment, even raunchy and salacious, could legitimately claim categorization within Article 19(1)(a). Their reply was that generally speaking it would not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertisements and vice versa. We would believe that advertisement revenue constitutes 70 per cent of broadcasters earning with the logical consequence that any increase in viewer ship leads to a corresponding increase in advertising rates. As has already been observed by the Supreme Court, measures of the Governments or Authorities should not result in diminution of readership or viewer ship, as the case may be, since this will be a classic and obvious infraction of the fundamental freedom guaranteed and preserved by Article 19(1)(a). The Petitioners have not placed before us their Accounts or Balance-sheets or for that matter any material which would illustrate and disclose that the fixation of a top limit of tariff for a pay channel has resulted in unremunerative earnings and collections by the Petitioners. Learned Counsel for the Petitioners were in fact candid enough to state that they did not have sufficient time to collect material and data in this regard. If this is so it only lends credence to the contention of learned Counsel for the Respondents that the Petitioners have rushed to this Court in an irresponsible manner without really assessing the actual repercussions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify different rates for different persons or class of person for reason to be recorded; the Authority shall not act against the sovereign and integrity of India; or the security of the State; or friendly relations with foreign States; or public order, decency or morality. Learned Senior Counsel for the Petitioners contend that this Section bestows unchannelised, unguided, undefined and untrammeled powers on the delegate namely the Authority, and hence should be struck down. What has to be ascertained in every case where such a submission has been put forward is whether the legislative policy has been delineated before the delegation is made, and also whether a correctional system of superintendence and supervision of the delegate's actions has been put in place. Courts should also consider the degree to which delegation is inevitable or necessary or expedient. The frontiers within which the Delegate/Authority must function is further identifiable from indicia available in the Act itself. The Preamble enjoins that the Authority should endeavor to (a) regulate the telecommunication services, (b) protect the interests of service providers and consumers of the telecom sector, (c) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43. We are satisfied that the TRAI Act adequately articulates the parameters and ethos within which the Authority must function. The assailed provisions do not suffer from the vice of excessive delegation of powers. virus OF RULES 9 AND 10 OF CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995 44. Section 22 of the Cable Television Networks (Regulation) Act, 1995 [CTN Act] empowers the Central Government, by Notification in the Official Gazette, to make rules to carry out the provisions of the Act. In exercise of these powers the Central Government has notified the Cable Television Networks Rules, 1994 [CTN Rules] as amended from time to time. Rule 9 thereof has undergone changes via GSR 459(E) dated 6.6.2003. Thereafter, the Rules 9 and 10 were replaced by the existing Rules by virtue of GSR 452(E) dated 31.7.2006. Rule 9(a), which is causing considerable concern to the Petitioners, authorises the Authority to notify standard interconnection agreements to be used for entering into commercial agreements for distribution in the notified areas, all pay or free-to-air channels among (i) broadcasters and multi-system operators; and (ii) multi-system operators and local cable operators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 (10 of 2006) dated 04.09.2006 (No. 6-4/2006-BandCS) as amended by the Telecom Regulatory Authority of India; being ultra vires. The underlined words have been added by hand by the Petitioners in the Petition, making it palpably clear that it was an afterthought. Keeping the nebulosity of the prayer in perspective we are satisfied that the Petitioners ought not to be permitted to mount a challenge to the virus to the Regulations without laying the foundation for it in their pleadings. This is especially so since the challenge to the virus to the Interconnection Regulations with reference to Articles 14 and 19 of the Constitution has been specifically pleaded. On a perfunctory and prima facie level we may reiterate that it is not correct to contend that the CTN Act does not contemplate broadcasting activity at all. We also draw support from the decision of the Division Bench of the Andhra Pradesh High Court in WP No. 12781 of 2006 between Messrs J.K. Communications and The TRAI and Ors. 46. Furthermore, the TRAI is clearly competent to prescribe the conditions and tariff impugned before us by virtue of the TRAI Act itself. We have already upheld the legality of Section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or/distributor of TV channels shall inform the consumers about such dispute to enable them to protect their interests. Accordingly, the notice to disconnect signals shall also be given in two local newspapers out of which at least one notice shall be given in local language in a newspaper which is published in the local language, in case the distributor of TV channels is operating in one district and in two national newspapers in case the distributor of TV channels is providing services in more than one district. The period of three weeks mentioned in Sub-clauses 4.1 and 4.2 of this regulation shall start from the date of publication of the notice in the newspapers or the date of service of the notice on the service provider, which is later. Explanation 1. In case the notice is published in two newspapers on different dates then the period of three weeks shall start from the latter of the two dates. 2. Broadcaster/multi system operator/distributor of TV channels may also inform the consumers through scrolls on the concerned channel (s). However, issue of notice in newspapers shall be compulsory. 4.4 The notice in the newspapers must give the reasons in brief for the discon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAI requires to be strengthened by making suitable amendments to the Act. A Group on Telecom and IT Convergence had been constituted for this purpose, which submitted its Recommendations to the Central Government leading to the promulgation of the Telecom Regulatory Authority of India (Amendment) Ordinance dated 24.1.2000. The salient features of the Amendment were (a) to bring into being a clear distinction between the recommendatory/advisory and the regulatory functions of the Authority as envisaged under Sub-section (1) of Section 11 of the Act, (b) empowering the TRAI to fix terms and conditions of interconnectivity between service providers, (c) tariff setting function of TRAI has been brought under the purview of Sub-section (3) of Section 11. By means of this very amendment the TDSAT had also been established which by Section 14 has the power to adjudicate any disputes between a licensor and a licensee between two or more service providers or between a service provider and a group of consumers and to hear and dispose of appeals against any direction, decision or order of the Authority under the Act. We cannot accept the argument that the law does not empower TRAI to fix term ..... X X X X Extracts X X X X X X X X Extracts X X X X
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